Defending a Juvenile Deliquency Case
Posted: Tuesday, March 09, 2010
by Kenneth Vercammen
Kenneth Vercammen & Associates, PC
Handling juvenile delinquency cases is becoming a sub-specialty that requires special knowledge of the juvenile justice system. Juvenile cases are difficult to handle for different reasons:
(1) The juveniles often refuse to admit to their attorney any participation in the offense despite clear guilt.
(2) The parents sometimes refuse to acknowledge their child's involvement.
When the client is first in the office, we have them fill out a Confidential New Criminal Case Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the person's arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions. Our interview sheet also asks if there is anything else important. The extent to which the client fills out the form lets us know whether or not the client will follow instructions and cooperate with us.
After reviewing the complaint and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer. The ABA adopted Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with a brochure explaining how to appear in court, a brochure on surcharges, a brochure on points, and a brochure regarding alcohol counseling/substance abuse treatment, if applicable.
I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why the court should impose the minimum license suspension. This provides us with information for mitigation and penalties and also provides information to be considered by the judge in sentencing.
I. WHO IS THE CLIENT?
The client must be the juvenile charged. It is not the parent or grandmother who pays the bills. It is important to preserve the confidence of the client. I let the juvenile know that they can call us whenever they want, and we will not tell their parents anything told in confidence.
Discovery in non-motor vehicle cases is requested in writing to the
District Attorney. Motor vehicle charges alone are heard by the Municipal Court Judge and handled by the Municipal Prosecutor.
Trial Call is the next appearance and the defense counsel will receive discovery, if it has not previously been received. Applicable motions should be filed prior to the trial call: Motion to Suppress, Compel Additional Discovery, Dismiss Complaint, etc.
Juveniles have most of the same rights under the Constitution as adults:
- 4th Amendment - No unreasonable searches
- 5th Amendment - Right to Remain Silent
- 6th Amendment - Right to Attorney
- 6th Amendment - Right to Cross Examine Witnesses
Unlike adults, juveniles do not have a right to a jury trial and do not have to post bail.
It is a popular misconception that juvenile arrests are automatically erased when the juvenile turns 18. The criminal "charge", even if later dismissed, stays on their record forever unless they have their attorney file a formal petition for Expungement.
Once we receive our retainer, we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case.
Law is a business. I try to impress my clients and hope that they will send additional clients.
II. POST INTERVIEW PREPARATION
We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. Any other Motions to Dismiss should be made in writing such as statute of limitations or lack of jurisdiction.
Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result regarding alcohol or drugs, you can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to have the judge decide a crucial issue by motion in order to save you a six-hour trial.
III. ADDITIONAL DISCOVERY PHASE
Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not we have a reasonable prospect of winning.
In the case involving essential witnesses, we may write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney could not testify if the witness provides an inconsistent statement but our law clerks could testify. I sometimes speak to the witness myself later to make a decision to determine whether or not the witnesses are credible. You must protect yourself from looking like a fool. Oftentimes the clients are not telling the truth and the witnesses are not telling the truth.
IV. PREPARING FOR TRIAL
If it is a drug case, we may make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, we will call the prosecutor ahead of time to see if a matter can be worked out or plea bargained.
THE OFFENSE AND ARREST
Police are permitted to arrest if they see a crime or are provided with information that a juvenile committed a crime. Generally, the juvenile will be released to the custody of parents or guardians. A person is a juvenile for delinquency purposes until his/her 18 th birthday. For serious crimes, if the juvenile is a threat to themselves or the community, or if the juvenile is a habitual offender, they can be brought to the County Juvenile Detention Center . They will remain in detention until released by the Superior Court Judge at a recall hearing, after a probable cause hearing or at the conclusion of the case. It is rare and serious when a juvenile is held at the Detention Center .
MIRANDA WARNING AND CONFESSIONS
Police must provide Miranda Warning to juveniles. If a confession is sought and you need to try and preclude the admission of a confession, the issue will be whether the waiver of Miranda Warning was "knowing and voluntary" by the juvenile.
Caselaw indicates both juveniles and even retarded citizens can waive their right to remain silent.
FORMAL TRIAL
If the case goes to trial, the judge serves as the fact-finder and makes all decisions, unlike adult court where those charged can have a jury trial. The trial is usually held before a Superior Court Judge in the county where the juvenile resides.
FIRST APPEARANCE IN FORMAL TRIAL CASES
The Court itself will send a copy of the Complaint to the juvenile's parents and a Mandatory Notice to Appear for an Interview for Public Defender Eligibility. The Public Defender handles only indigent cases, juveniles whose parents are on welfare, unemployed, and have no assets.
This mandatory appearance is unnecessary once the client retains an attorney and the attorney sends in a Notice of Appearance.
THE TRIAL
Interview witnesses to determine if they will be credible and help your client. Serve your subpoenas on witnesses in sufficient time prior to trial. Have your legal research done prior to trial, such as on constructive possession of drugs or stolen property.
V. PLEA TO A LESSER DEFENSE
If the client is going to enter a guilty plea to any offense, it is important that they understand what the offense is and put a factual basis on the record. You will be embarrassed if your client is pleading guilty to a drunk driving case and the judge asked your client what he had to drink, the client insists he only had one beer. The judge will send you back to your seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. Having previously obtained for my client their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.
Most states, such as New Jersey have a conditional discharge, pre-trial intervention, or other programs that are available to clients charged with drug offenses who have never previously been arrested or previously been convicted of the drug offense. Again, to avoid embarrassment, it is a good idea to speak with the prosecutor and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a conditional discharge type program. Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.
About the Author:
Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County , New Jersey . Kenneth Vercammen was selected one of only three attorneys as a Super Lawyer 2010 in NJ Monthly in the Criminal - DWI. Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.?? He is the past chair of the NJ State Bar Association Municipal Court Section. He was the Deputy chair of the ABA Criminal Law Committee, GP Division.
KENNETH VERCAMMEN ATTORNEY AT LAW
2053 Woodbridge Ave. Edison , NJ 08817 732-572-0500
NJ LAWS LEGAL WEBSITE: www.njlaws.com
Criminal website www.BeNotGuilty.com
He has lectured on traffic and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College . He often lectures for the New Jersey State Bar Association on personal injury, criminal /municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters.
Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton , PA.
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